Johnson v. Monongahela Power Co.

Citation123 S.E.2d 81,146 W.Va. 900
Decision Date12 December 1961
Docket NumberNo. 12082,12082
PartiesC. M. JOHNSON v. MONONGAHELA POWER COMPANY, A Corporation.
CourtSupreme Court of West Virginia

Syllabus by the Court

1. Valid rules and regulations of the Public Service Commission of West Virginia, which incorporate and adopt certain minimum requirements of the National Safety Code with regard to the external installation of electrical equipment, have the force of statutory law and the failure to comply therewith would constitute prima facie negligence. The compliance therewith would meet the standard of care and duty required in such cases unless other circumstances appear which would require additional care in order to comply with the requirement to use ordinary care in attendant circumstances.

2. If a power company actually knows a dangerous condition exists, even though it did not create such dangerous condition, it may be responsible for damages that result therefrom if proper precautions are not taken by it to correct or guard against such dangerous condition.

3. A plaintiff may be guilty of contributory negligence if he has the same knowledge of an unsafe condition as the defendant and takes no precaution with regard to the situation.

4. Where the improper maintenance of insulation of electric wires is not the proximate cause of the damage complained of it cannot be used as evidence of negligence to support recovery against a defendant.

5. The doctrine of res ipsa loquitur may not be relied on where only specific acts of negligence are alleged in a declaration and no facts are alleged in the declaration which give rise to the application of such doctrine.

6. Where the doctrine of res ipsa loquitur is applicable and defendant presents sufficient evidence to clearly rebut the inference created by the application of such doctrine and the plaintiff's evidence does not overcome such rebuttal, there can be no recovery for damages against the defendant.

7. It is sufficient in order for an object to be introduced in evidence that such object be satisfactorily identified as being in substantially the same condition as at the time of the occurrence in question.

8. 'Those who operate and maintain wires charged with dangerous voltage of electricity are required to exercise a degree of care commensurate with the dangers to be reasonably apprehended therefrom; but they are not insurers against all injury therefrom.' Pt. 1, syllabus, Maggard v. Appalachian Electric Power Company, 111 W.Va. 470 .

Ernest R. Bell, Fairmont, Haymon H. Boggs, Glenville, for plaintiff in error.

Linn Mapel Brannon, Weston, W. Paul McWhorter, Clarksburg, for defendant in error.

BERRY, Judge.

The plaintiff, C. M. Johnson, instituted an action of trespass on the case in the Circuit Court of Gilmer County, West Virginia, on October 1, 1958, against the defendant Monongahela Power Company, a Corporation, to recover damages for the destruction of the plaintiff's two-story frame and block building located in the town known as Sand Fork in Gilmer County, West Virginia, the corporate name of said town being Layopolis.

The plaintiff's building was destroyed by fire alleged to have been caused by the negligence of the defendant. The jury returned a verdict in favor of the plaintiff in the amount of $14,000.00, on which judgment was entered on April 18, 1960. Upon application to this Court, a writ of error and supersedeas was granted to the said judgment of the Circuit Court of Gilmer County on November 14, 1960.

This action arose from a fire which occurred on March 31, 1958, destroying the building in question owned by the plaintiff. The building which was burned consisted of a garage on the first floor and two apartments on the second floor. Part of the contents of the building was also destroyed by the fire. The first story of this building was constructed of concrete blocks and the second story was constructed of wood with metal covering. At the time the fire occurred the defendant furnished electric current to the plaintiff's building through three No. 8 copper weatherproof service wires emanating from a 5 Kilovoltampere self-protecting transformer attached to a pole located near a building owned by Ray Jones and situated some distance from the plaintiff's building. The transformer reduced the voltage on the primary wires from 7200 volts to 120-240 volts carried on the secondary service wires to the plaintiff's building. The three service wires were spaced 6 to 8 inches apart and were attached to three porcelain insulators located on the right front corner of plaintiff's building between fourteen inches and two feet from the roof and about eighteen feet from the ground. The service wires were run down plaintiff's building wall through a conduit and entered the plaintiff's building between the first and second stories into a service meter and fused switch box from which the power was distributed to various circuits in the Johnson property. The defendant power company is responsible for getting the power to the location of the insulators and on the entrance cable. The distribution beyond the insulators and over internal wiring is the responsibility of the person to whom the power is furnished. The weatherproofing on the service lines also serves as insulation. The installation of the service wires complied with the National Safety Code with regard to safety standards for external wiring. The National Electric Code deals with the safety standards for internal wiring and both of these Codes have been adopted and approved by the rules and regulations of the Public Service Commission of West Virginia which regulates the conduct of utilities in this State. There is conflict in the evidence with regard to the condition of the weatherproofing on the service lines at the time of the fire. The plaintiff's evidence indicates that the weatherproofing was in poor condition, having strips of outer covering hanging down and bare places where other wires were attached to the service lines in order to furnish power to a stop light in the town of Layopolis. The defendant's evidence was to the effect that the weatherproofing on the service lines was all right and not in a dangerous condition.

In 1951 the town of Sand Fork had a stop light erected near the plaintiff's building. The defendant had nothing to do with the erection of this stop light, and one thirty-five foot pole supporting the stop light was located or placed about eight or ten feet from the plaintiff's building at the intersection of Route No. 5 with the Sand Fork Creek Road. The plaintiff's property and the Ray Jones' property are located at this intersection. The plaintiff's property faces on State Highway No. 5 and the Jones' property on the Sand Fork Creek Road. Another thirty-foot pole supporting the stop light was placed diagonally across State Highway No. 5 from the plaintiff's property upon a bank about eight feet above the hard surfaced road. An uninsulated five strand steel cable, about three-eighths of an inch in diameter, known as a messenger wire used to support the service wires which furnished electric current to the traffic light when in operation was attached to both poles, but the messenger cable itself carried no electric power. When this cable was attached to the two poles by the town of Sand Fork it was hung about five or six feet above and across the three service wires leading to the plaintiff's property.

In 1954 a truck struck the stop light and damaged it. The damaged stop light was removed and although the town obtained another stop light, it was never replaced. The plaintiff was mayor of the town of Layopolis for a period of at least two years, between 1954 and 1956, and was instructed by the town council to do something about the stop light. After the new stop light was obtained, the plaintiff requested Chester Cunningham, a district representative of the defendant, to assist in the replacement of the stop light. It was ascertained at that time that the pole across the highway from the plaintiff's property needed a guy wire to support it and the plaintiff requested Cunningham to obtain one. Cunningham did not return with the guy wire but the plaintiff told him later that the people upon whose land they intended to place the guy wire would not allow them to do so, and no guy wire was ever placed on the pole. At the time the plaintiff and Cunningham were discussing the replacement of the stop light they both examined the pole in question and found that it was not secure and that it would be necessary to have it guyed or supported. The condition of the pole, which later fell, was fully known to the plaintiff as well as to Cunningham.

About 2:15 on the morning of the fire the pole referred to above located across the highway from the plaintiff's building fell, allowing the messenger cable, which was attached to both the pole near the plaintiff's building and the pole which fell and which was used to support the abandoned stop light, to come in contact with and rest on the service wires leading to the plaintiff's building. A few minutes later the fire was discovered in the plaintiff's building.

There is no direct proof as to what caused the fire. The plaintiff was awakened about 2:15 a. m., apparently by the noise when the pole fell. He stated he saw a flash and told his wife to call the power company or the sheriff and report the falling of the pole. He then went outside his building and saw a blue arc near where the service wires were attached to his building. He also testified that he saw a similar arcing on the side of the Jones building which was served by the same transformer. The plaintiff stated that it was about three or four minutes after the pole fell before he went outside and saw the arc and then reentered the building to warn his wife to be careful, and when he went outside again he saw that his building was on fire, both inside...

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    ...to be reasonably apprehended therefrom; but they are not insurers against all injury therefrom.' See also Johnson v. Monongahela Power Company, 146 W.Va. 900, 123 S.E.2d 81. However, the rule is firmly established in this jurisdiction by many decisions of this Court that a power company whi......
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